Case 1:18-cv-00709 Document 1 Filed 01/26/18 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
________________________________________________
X
:

THE NEW YORK TIMES COMPANY
and CHARLIE SAVAGE,

:
Plaintiffs,
:
COMPLAINT
- against -

:

DEPARTMENT OF DEFENSE

:
Defendant.

:
:

________________________________________________X

Plaintiffs THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE, by their undersigned
attorney, allege for their Complaint:
1.

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552, to obtain an order for the production of agency records from Defendant Department of Defense
(“DOD”) in response to a FOIA request properly made by Plaintiffs.
2.

The FOIA request at issue in this action seeks the Trump Administration’s rules

governing the use of lethal force abroad, known as the “Principles, Standards, and Procedures,” or “PSP.”
These rules replace the Obama Administration’s policies governing the use of lethal force abroad, known
as the “Presidential Policy Guidance,” or “PPG.”
PARTIES
3.

Plaintiff The New York Times Company publishes The New York Times

newspaper and www.nytimes.com. The New York Times Company is headquartered in this judicial
district at 620 Eighth Avenue, New York, New York, 10018.
4.

Plaintiff Charlie Savage is a reporter for The New York Times and an employee of

The New York Times Company.

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5.

Defendant DOD is an agency of the federal government that has possession and

control of the records that Plaintiffs seek.
JURISDICTION AND VENUE
6.

This Court has subject matter jurisdiction over this action, pursuant to 28 U.S.C.

§ 1331 and 5 U.S.C. § 552(a)(4)(B).
7.

Venue is premised on the place of business of Plaintiffs and is proper in this

district under 5 U.S.C. § 552(a)(4)(B).
8.

Defendant DOD has failed to meet the statutory deadline set by FOIA. See 5

U.S.C. § 552(a)(6)(A)-(B). Plaintiffs are therefore deemed to have exhausted all administrative remedies,
pursuant to 5 U.S.C. § 552(a)(6)(C).
FACTS
9.

On October 27, 2017, Plaintiffs submitted a FOIA request to DOD (Ref. No. 18-

F-0157) seeking “access to (and declassification review of, if necessary) the document (including any
annexes or appendices) in which President Trump laid out a revised set of principles, standards, and
procedures for counterterrorism kill-or-capture operations, replacing the Obama-era ‘Presidential Policy
Guidance’ rules.”
10.

On November 2, 2017, DOD acknowledged receipt of the request and stated that

it would not be able to process the documents within the 20-day statutory deadline.
11.

On November 14, 2017, Plaintiffs appealed the constructive denial of its request.

12.

DOD has failed to respond to Plaintiffs’ initial FOIA request or subsequent

administrative appeal within the statutory time frame required under FOIA.
COUNT
13.

Plaintiffs repeat, reallege, and reincorporate the allegations in the foregoing

paragraphs as though fully set forth herein.

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14.

Defendant DOD is subject to FOIA and must therefore release in response to a

FOIA request any disclosable records in its possession at the time of the request and provide a lawful
reason for withholding any materials as to which it is claiming an exemption.
15.

DOD has failed to meet the statutory deadline set by FOIA. See 5 U.S.C. §

552(a)(6)(A)-(B). Accordingly, Plaintiffs are deemed to have exhausted their administrative remedies
under FOIA.
16.

DOD has no lawful basis for declining to release the records requested by

Plaintiffs under FOIA.
17.

Accordingly, Plaintiffs are entitled to an order compelling DOD to produce

records responsive to their FOIA request.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
18.

Declare that the documents sought by their FOIA request, as described in the

foregoing paragraphs, are public under 5 U.S.C. § 552 and must be disclosed;
19.

Order DOD to provide the requested documents to Plaintiffs within 20 business

days of the Court’s order;
20.

Award Plaintiffs the costs of this proceeding, including reasonable attorneys’

fees, as expressly permitted by FOIA; and
21.

Grant Plaintiffs such other and further relief as this Court deems just and proper.

Dated: New York, NY
January 26, 2018

_____________/s/_________________
David E. McCraw, Esq.
Legal Department
The New York Times Company
620 8th Avenue
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New York, NY 10018
phone: (212) 556-4031
fax: (212) 556-1009
e-mail: mccrad@nytimes.com
Counsel for Plaintiffs

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